The company invites third parties other than the original shareholders to make equity investments in the company to increase the company's registered capital. Although the original shareholders' equity ratio is reduced, they do not need to transfer the equity, thereby improving the company's financial status. The purpose is to expand operating strength and introduce advanced management concepts or production technologies. The original shareholders do not need to exit, but can also enjoy the dividend income brought by the company's steady development due to the increase in registered capital. Equity investment (increasing registered capital) has become the most popular method of cooperation between companies and venture capital.

However, due to the capital increase process involving capital increase and share expansion agreements (equity investment agreements), shareholders' meeting resolutions, board of directors resolutions, changes in articles of association, changes in industrial and commercial registration, etc., it often triggers the qualification of third-party shareholders for capital increase Confirm the dispute.

Practical Case

In January 2005, Mr. He signed an "Agreement on Capital Increase and Share Expansion" with a real estate company, stipulating that Mr. He would increase the capital of the real estate company by 10 million yuan and obtain 50 million yuan from the company. % equity and serves as the legal representative and general manager of the company. The original registered capital of the real estate company was 10 million yuan. There were four original shareholders, Zhang Yue, Wang Zhao, and each of them owned 12.5% ??of the equity from 25%. The company's official seal was affixed to the "Agreement on Capital Increase and Share Expansion", but only the original shareholder named Zhang signed it. The company's official seal was affixed to the changed articles of association. The signatures of shareholders surnamed Yue and Wang on the shareholders' meeting resolution were signed by me, but the signatures of shareholders surnamed Zhang and Zhao were not signed by me.

After Mr. He injected 10 million yuan in capital as agreed, the company went through the industrial and commercial registration for change of legal representative, but did not go through the industrial and commercial registration for change of registered capital, shareholder equity and company articles of association. After the capital increase, Mr. He participated in the company's operations as the general manager of the company. However, in November 2005, the original shareholders did not notify Mr. He of convening a shareholders' meeting to remove Mr. He's legal representative and remove him from his position as general manager of the company.

In December 2005, Mr. He filed a lawsuit against the real estate company, requesting: confirmation of the identity of the shareholder and ownership of 50% of the equity; and the real estate company going through the industrial and commercial registration procedures for increasing registered capital and changing equity. The real estate company claimed that the 10 million yuan received from Mr. He was a loan. The company's increase in registered capital without the consent of shareholders representing more than 2/3 of the company's equity was an invalid capital increase. The plaintiff did not have the status of a company shareholder.

Court Judgment

The court’s effective judgment confirmed the plaintiff Mr. He’s shareholder status and 50% equity ratio, and required the real estate company to apply to the industrial and commercial administration authority for industrial and commercial changes within 10 days of the judgment taking effect. Register.

The basic reasons are as follows:

1. The "Agreement on Capital Increase and Share Expansion" is the true expression of intention of both parties and is legal and valid;

2. The defendant accepted the plaintiff's offer A capital increase of 10 million yuan;

3. The defendant stamped its official seal on the articles of association recording that the plaintiff was a shareholder of the company, confirming the plaintiff’s shareholder status;

4. In the "Capital Increase and Expansion The equity held by the shareholders who signed the "Share Agreement" and the changed company articles of association exceeded 2/3 of the company's equity, confirming the company's capital increase and share expansion and the plaintiff's shareholder identity.

5. The registration of change of shareholders by the industrial and commercial administration department is a confirmation of the fact that the change has occurred, and has no effect in creating shareholder qualifications.

Lawyer analysis

The confirmation of shareholder qualifications of a limited liability company involves the actual amount of capital contribution, capital increase and share expansion agreement (equity transfer agreement), company articles of association, shareholder list, capital contribution certificate, industrial and commercial registration, etc. , various factors should be considered comprehensively when confirming shareholder qualifications.

One of the focus points: When the records in the industrial and commercial registration and the company's articles of association are inconsistent, what standards are used to confirm the qualifications of shareholders?

According to the provisions of the "Company Law", shareholders of a company should have the following substantive and formal characteristics:

1. Be recorded as a shareholder in the company's articles of association and sign the company's articles of association;

2. Fulfilled the capital contribution obligations promised in the company's articles of association;

3. Recorded as a shareholder in the company documents filed with the industrial and commercial administration department;

4 . Possess an investment certificate issued by the company;

5. Be recorded as a shareholder in the company’s shareholder list;

6. Enjoy and exercise shareholder rights.

Among the above characteristics of shareholders, the company's articles of association serve as an agreement between shareholders. The company's articles of association are recorded as shareholders and their signatures in the articles of association indicate their true intention to become shareholders, which is decisive for the confirmation of shareholder qualifications. significance. Therefore, as long as there is no basis sufficient to overturn the intention of the shareholder who signed the company's articles of association to become a shareholder, he should be deemed to have shareholder qualifications. The registration of change of shareholders by the industrial and commercial administration department is a confirmation of the fact of shareholder change and does not have the effect of creating shareholder qualifications. When there is a conflict between the industrial and commercial registration and the records in the company's articles of association, the record in the company's articles of association takes precedence. In addition, actual capital contribution is one of the important obligations of shareholders to the company, but it is not a decisive condition for obtaining shareholder qualifications, and their shareholder qualifications should not be denied simply because they have not contributed capital.

Focus 2: If there are flaws in the resolution of the shareholders’ meeting, what impact will it have on the confirmation of shareholder qualifications?

In this case, the "Shareholders' Meeting Resolution" was signed by the original shareholder who owned half of the shares, and the "Efficiency Increase and Share Expansion Agreement" was also signed by the other 1/4 shareholders. All the signing shareholders expressed their support for the efficiency increase and share expansion. The facts are recognized. The flaws in the "Shareholders' Meeting Resolution" do not affect the validity of the "Efficiency Increase and Share Expansion Agreement" signed between the company and a third party, and cannot deny the plaintiff's shareholder qualifications.

As for the infringement of the right of another shareholder who has not signed the "Resolution of the Shareholders' Meeting", the "Agreement on Capital Increase and Share Expansion" and the "Articles of Association", it does not affect the plaintiff's shareholder qualifications. Confirmed, but will affect the plaintiff’s shareholding ratio. The impact of the original shareholder’s preemptive subscription right to capital contribution on the effectiveness of the capital increase and share expansion agreement, whether the preemptive subscription right to capital contribution can be exercised and the conditions for its exercise will be discussed in another article.

Focus 3: Legal relations and legal application of capital increase and share expansion

Before a limited liability company increases efficiency and expands shares, a third party other than the original shareholder who wants to become a shareholder through capital increase He is not yet a shareholder, so there are two legal relationships in the act of increasing efficiency and expanding shares.

First, the company's internal legal relations when increasing its registered capital shall be governed by the provisions of the Company Law and the Company's Articles of Association.

The second is the external legal relationship between the company and a third party paying capital increase, and the provisions of the contract law shall apply.